Text, Andrejs Judins, Centre for Public Policy PROVIDUS, 2003 Translation, Lolita K aviña, 2003 Design, Nordik Publishing House, 2003

Transcription

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2 UDK Ju 170 THE SOROS FOUNDATION LATVIA This study has been prepared as part of the Centre for Public Policy PROVIDUS Public Policy Fellowship Program, which is financed by the Soros Foundation Latvia, the Open Society Institute Justice Initiative Program (JI), and the Local Government and Public Service Reform Initiative (LGI). The author takes full responsibility for accuracy of the data. The study is available in Latvian and English on the Internet: or Project consultants: Prof. STEPHEN HEYNEMAN, University of Vanderbilt, USA; M. jur. ILONA KRONBERGA, Prison Administration General Inspector's Office, Riga, Latvia Assoc. prof. ALEKSEJS LOSKUTOVS, Police Academy of Latvia, Riga, Latvia Text, Andrejs Judins, Centre for Public Policy PROVIDUS, 2003 Translation, Lolita K aviña, 2003 Design, Nordik Publishing House, 2003 ISBN

3 5 EXECUTIVE SUMMARY One common characteristic of societies in transition is an increase in crime. It seems that the freedom to choose one s economic career and political leaders is accompanied by the freedom to make bad choices about one s personal behavior. Thirty-nine thousand crimes were reported in Latvia in 1995, but this figure rose to 44,000 in 1999 and to 49,000 in 2002, an increase of 26% over On the other hand, the criminal investigative functions have been professionalized, and the proportion of solved crimes has increased from 35% in 1995 to 45% in In 2002, over 22,000 crimes were solved and brought to trial, representing an increase of 61% over The problem is that the increase in police professionalism has not been matched by an increase in the capacity to manage those convicted of crimes. No prisons have been built in the last ten years. In fact, the number of persons actually sent to prison in 2002 declined from the number in In essence: the number of crimes has increased. The proportion of crimes solved has increased. But the number of persons sent to prison has decreased. What has happened to those convicted of crimes who do not go to prison? This study will answer that question and discuss the implications. Because of the shortage of prison places, the tendency in Latvia has been to give convicted criminals conditional sentences. The number of conditional sentences increased from 4,192 in 1993 to 6,780 in 2002, an increase of 62%. The problem in Latvia is that conditional sentencing is associated with renewed criminal behavior. The number of crimes committed by persons with criminal records increased from 8,000 in 1998 to 9,600 in 2002, about 19%. The number of persons on probation who have committed new crimes increased from 344 in 1994 to 1,353 in 2001, an increase of about 300%. More importantly, the types of crimes that are committed include violence to both people and property. In spite of this, the number of criminals on probation who have had their conditional sentences revoked actually declined from 43 in 1999 to 39 in The public expects to be safe from crime, and quite rightly expects that convicted criminals will not be allowed to commit new crimes. Clearly there is something wrong with the system of conditional sentencing in Latvia. But what can be done to improve it at an affordable cost?

4 6 A. Judins. Conditional Sentencing as an Alternative to Imprisonment This study reviews the rationales for conditional sentencing and the views on conditional sentencing of judges and police. It analyzes the laws and regulations on conditional sentencing in Latvia and in other countries; it explores the data on conditional sentencing and the various benefits and drawbacks of conditional sentencing. It was found that: conditional sentences are frequently not seen as a form of punishment, but as an acquittal; supervision of persons serving conditional sentences is not effective; jurists have different ways to interpret the legal basis for the application of conditional sentences. The study makes four recommendations: amend legislation that covers conditional sentencing so that there is a common understanding of its purposes and conditions; formulate guidelines on conditional sentencing; reform the mechanism for supervision of probationers, anticipating not only control of offenders, but also their rehabilitation; increase the discretionary powers of the court to individualize conditional sentences, allowing courts to impose conditions which are not necessarily set out in the Criminal Law, but which can have a correctional effect on the offender. The study concludes that if these four recommendations are followed the increase in crime can be effectively managed without raising the risk to the public and without requiring significant new resources to expand the prison system over its current capacity.

5 7 CONTENTS Executive summary Introduction I. Crime in Latvia Criminal recidivism in Latvia Statistics on recidivism among probationers II. Conditional sentencing in Latvia in the 20th century Penal Law ( , ) RSFSR 1926 Criminal Code ( , ) Criminal Code of Latvia ( ) Criminal Law III. Principles and application of conditional sentences Factors to be considered when sentencing conditionally Sentences that may be imposed conditionally Probation period Application of conditional sentences by category of crime IV. Conditions imposed on probationers Abstention from further criminal offenses Observance of public order Abstention from administrative offenses Reporting for consultations with PIECJ when required Additional penalties Compensation for damages, within a specified period of time No change of home address without approval of the institution charged with supervising the probationer Regular reporting to a specified institution Avoidance of specified places Presence at home at specified times

6 8 A. Judins. Conditional Sentencing as an Alternative to Imprisonment Therapy for alcoholism, drug or substance dependency (if the crime has been committed as the result of alcohol, drug or substance abuse, and the offender consents to treatment) Problems involving the application of conditions not anticipated by the law Revocation of conditions Modification of conditions Extension of the probation period V. Revocation of a conditional sentence Further criminal offenses committed during the probation period Violation of public order during the probation period Failure to fulfil conditions VI. Supervision of probationers PIECJ and district inspectors Views of PIECJ officials on supervision efficiency Views of judges on supervision efficiency The Probation Service and supervision of probationers Work of local governments with probationers VII. Views of judges on the problems of conditional sentencing VIII. Problems and possible solutions Appendices Appendix 1. Legal consequences of evading criminal punishment or failing to fulfil the conditions of a conditional sentence Appendix 2. Probationers in Latvia (PIECJ data, February 1, 2002) Appendix 3. Crime in Latvia in Appendix 4. Categories of crimes for which offenders received conditional sentences in Bibliography Tables and figures Table 1. Crimes in Latvia in Table 2. Number of persons sentenced in Table 3. Persons with criminal records who have committed further crimes Table 4. Crimes committed by persons with criminal records Table 5. Recidivism in Latvia in Table 6. Probationers who have committed further crimes Table 7. PIECJ records on probationers who have committed further crimes Table 8. Factors judges feel should be considered before giving a conditional sentence

7 Contents 9 Table 9. Sentences of registered probationers (February 1, 2002) Table 10. Conditional sentences imposed in Table 11. Judges' views on the proportional relationship between lengths of the probation period and the prison term (%) Table 12. Offenses for which the offenders received conditional sentences in 2002 (excerpt) Table 13. Views of judges and PIECJ officials on the number of administrative offenses permissible during the period of probation Table 14. Judges' views on types of administrative offenses that should or should not be considered in connection with conditional sentences Table 15. Probationers who avoid reporting to PIECJ Table 16. Additional penalties imposed together with conditional sentences (judges' answers to the questionnaire) Table 17. Judges' views on future application of additional penalties together with conditional sentences Table 18. Judges' suggestions for conditions that should be applied together with conditional sentences in addition to those anticipated by the law Table 19. Reasons mentioned by judges for revoking conditions imposed on the probationer Table 20. Number of probationers whose probation period was extended by one year Table 21. Number of probationers whose conditional sentence was revoked for further offenses Table 22. Criminal charges brought against probationers for committing further crimes Table 23. Probationers registered with the police in 2002 (by city or district) Table 24. PIECJ officials' assessment of the work of district inspectors with probationers Table 25. Judges' views on PIECJ work with probationers Figure 1. Conditional sentences in Figure 2. Percentages of offenders with criminal records Figure 3. Recidivism among probationers Figure 4. Steps to reaching a decision in favor of a conditional sentence Figure 5. Legal consequences of conditional sentences Figure 6. Distribution of offenders given conditional sentences in 2002, by category of offense (% of total number of offenders given conditional sentences) Figure 7. Requirements of CL Section 55, Paragraph Figure 8. Number of probationers to one PIECJ official in

8 10 A. Judins. Conditional Sentencing as an Alternative to Imprisonment Abbreviations AOC CC CL CPC IC PIECJ RSFSR UN Administrative Offenses Code Criminal Code Criminal Law Criminal Procedures Code Information Center Police Inspectorate for the Execution of Court Judgments Russian Soviet Federative Socialist Republic United Nations?! Example of a court judgment which, in the opinion of the author, is incorrect or questionable. Example of a court judgment which, in the opinion of the author, fully complies with the principles of conditional sentencing.

9 11 INTRODUCTION Since the earliest of times, "crime" and "punishment" have been inseparable concepts. Disregard for the rules accepted by a society or outright violation of these rules have always been followed by public condemnation and restrictions on the rights of the offender. In the old days, society used punishment to discipline an offender, to take revenge for the damage incurred, to intimidate both the offender and others. Today, when applying criminal justice the state seeks not only to punish the individual, but also to prevent further criminal offences and help the offender to return to a normal and law-abiding life within the community. Today, criminal punishment is not so much the result of a criminal offence as the means by which the state attempts to change the attitude of the offender towards social values and prevent further offences. Modern societies are not interested in applying severe criminal punishment the only consideration is the effect of the punishment. More important than the type of punishment chosen by the court is the way in which execution of the sentence is organized and its effect on the future behavior of the offender. As before, the court can still place restrictions on the freedom of the criminal. However, isolation of the offender does not guarantee that, having served the sentence, this person will not commit further criminal offenses. Understanding that imprisonment is not a panacea that will help to significantly reduce crime rates, all countries, including Latvia, are trying to find other instruments for fighting and preventing crime. One possible way of solving the problem is to apply punishment that does not involve imprisonment, for example, community service or payment of fines. 1 A certain part of society does not support this approach, feeling that alternative forms of punishment are 1 European Council Recommendation No. R (96) 8 invites Member States, among them Latvia, to implement a coherent and rational criminal policy and to encourage the application of alternative forms of punishment to imprisonment. See: Europe in Time of Change: Crime Policy and Criminal Law. Recommendation No. R (96) 8 and explanatory memorandum and report on responses to developments in the volume and structure of crime in Europe in a time of change, p. 18.

10 12 A. Judins. Conditional Sentencing as an Alternative to Imprisonment too mild and actually absolve the offender from responsibility. Nevertheless, the formula "Prison is the Most Appropriate Place for Every Offender" is not only outdated, it is not in the public interest either. From a public safety point of view, more important than restricting the basic rights of an offender as much as possible is making sure that, after serving the sentence, the individual does not commit further crimes. Frequently, it would be wiser to do this by means of alternative forms of punishment. Criminal justice must seek the proper balance between the rights of the offender, the rights of the victim, public safety concerns and the prevention of crime. 2 + isolation of a criminal restricts opportunities for committing further offenses; deters others from committing offenses. The pluses and minuses of imprisonment the high cost of prison maintenance; With the application of an alternative form of punishment, the criminal offence receives a negative verdict from the state, the offender is subjected to certain restrictions and is required to fulfil certain conditions. At the same time, the offender remains in the accustomed environment and is not imprisoned together with others who have violated the law. An individual who has been sentenced to an alternative form of punishment can maintain his job and social contacts, and the government is not required to spend money on providing for the individual. Nevertheless, when applying alternative forms of punishment it is important to make sure that: _ deterioration of the financial situation and welfare of the offender s family; offender s loss of social contacts; criminal experience gained in contacts with other prisoners; the high cost of an offender s rehabilitation. the individual understands that he or she has received criminal punishment; the individual has a great desire to avoid repeated punishment; other members of society understand that the offender has received the appropriate criminal punishment. 2 The United Nations Standard Minimum Rules for Non-Custodial Measures (the Tokyo Rules) are aimed at achieving this goal (adopted at the 68th plenary meeting, December 14, 1990). See Article 1.4.

11 Introduction 13 This means that our criminal justice system must resolve a fairly complicated problem while humanizing the criminal punishment system, it must also ensure effective prevention of crime. One of the legal mechanisms for resolving the problem is the application of conditional sentences. These give the offender a choice: to observe the requirements of the law, fulfil the conditions imposed by the court and legally avoid imprisonment or, if the offender is unable to fulfil the conditions imposed by the court, to serve the sentence. In this way, by giving an offender a conditional sentence the state can: ensure a correctional effect with a minimum of resources, i.e., by not applying severe criminal sanctions; develop the offender's sense of responsibility by leaving it up to the offender to determine whether the sentence will have to be served or not. A conditional sentence is a sentence that does not take effect on the condition that the offender does not commit a new crime, does not violate public order and fulfils the conditions imposed by the court during a period of probation. In fact, it means that a person has been found guilty of committing a crime, but is not required to serve the sentence pronounced by the court. Unfortunately, this is often understood to mean that a conditional sentence is not real punishment, and that the offender is freed from liability for the crime that he or she has committed. Conditional sentences often create confusion and lead to the assumption that in Latvia it is possible to commit criminal offenses for which, even in cases where the identity of the offender has been established and guilt proved, the court will abstain from punishment by pronouncing a conditional sentence. It is clear that not everyone can be expected to understand the legal nuances of conditional sentences. This is not possible and it is not necessary. However, public misconceptions about the principle of conditional sentences raise the level of legal nihilism and increase distrust of courts and other law enforcement institutions. Without being sufficiently informed about the concept behind conditional sentences, a law-abiding citizen, upon learning about a conditional sentence, will often see this as a sign of corruption and as a reason for renewed disillusionment in our legal system. Others see this as a green light for violation of the law, because a conditional sentence is not something to be feared. Education of the public about conditional sentences is extremely important and could raise the level of legal culture in a society. However, it is much more important to make

12 14 A. Judins. Conditional Sentencing as an Alternative to Imprisonment sure that this form of punishment really does become an effective crime-fighting instrument. Each person, even one who has violated the law, is a member of society, has lived and will continue to live among other people. The Criminal Law allows the isolation of an individual from society; but after a certain length of time, the offender will return to society. If the punishment that has been endured has not changed the offender's attitude to the offense, there is a fairly great chance that this person will eventually commit further crimes. Reforming an offender is in the interests of society. It is important not only for humane reasons, but also for purely pragmatic ones the former offender continues to live among other people, and any one of these people can become a victim of this person's next unlawful activity. There are approximately 10,000 people with conditional sentences living among us, communicating with other people. We shop in the same stores, we use the same public transportation, we walk the same streets. One in every 200 people in Latvia over the age of 14 has received a conditional sentence. It is clear that Latvia's population has the right to demand that the state not only give persons who have violated the law conditional sentences, but that it also supervise such people, help them and make sure that their behavior is corrected. Our criminal justice system does not see conditional sentences as an independent measure of punishment, but as an alternative to punishment. Despite this, we must admit that conditional sentences have all the earmarks of criminal punishment: they are imposed on persons who have committed a crime; they are applied with the intention of reforming a person and preventing further violations of the law by such person (special prevention); they have repressive character an offender's behavior is subject to various restrictions; during the period of probation, the offender is considered as having a criminal record; they are applied in order to influence the behavior of other persons and to demonstrate that those who commit criminal offenses are punished (general prevention). A conditional sentence is the mildest form of criminal punishment since it replaces a more severe conviction imprisonment, community service or payment of a fine demanding from the offender the observation of public order and abstinence from repeated offences.

13 Introduction 15 A conditional sentence is a demonstration of trust in the offender, an expression of the hope that, even without having to actually serve the sentence, the offender will reconsider what he has done and will not commit new crimes. A conditional sentence is an alternative to imprisonment, which applies the principle of economy to criminal sanctions. However, despite the progressive character of conditional sentences, practice shows that at present it is not a panacea for crime prevention because: the offender, the victim and the public often do not consider a conditional sentence to be punishment; the public often has a reserved or even negative attitude to conditional sentences; persons who receive conditional sentences often commit new crimes during and following the probation period; there is no effective control and supervision of probationers; there is no agreement among law enforcement officials on how to interpret the provisions of law that lay down the rules for conditional sentences; not all provisions of law are sufficiently precise, and this encourages different approaches to the application of conditional sentences; conditional sentences are not being developed as an institution of law, although there are opportunities for improvement.

14 16 I. CRIME IN LATVIA In the past five years, from 1998 to 2002, a total of 231,253 criminal offenses were registered in Latvia. In 2000, the number of registered crimes surpassed 50,000. In 2001, the number was 51,082; in 2002, 49, Each year, more than 10,000 persons are convicted in Latvia. In a ten-year period, from 1993 to 2002, a total of 118,951 persons were found guilty of committing criminal offenses. Table 1. Crimes in Latvia in Year Registered crimes 39,141 38,205 36,865 36,674 43,969 50,199 51,082 49,329 Solved crimes 13,810 16,872 18,940 20,766 20,666 21,541 23,225 22,328 % of total number of crimes Although our society associates criminal punishment primarily with prison sentences, in the ten-year period from 1993 to 2002, only 31,196 persons or 26.23% of those convicted were actually sent to prison. The remainder received sentences that do not involve serving time in prison. 60,055 persons or 50.49% of those convicted received conditional sentences. In 1992, 25.21% received conditional sentences, but in 2002 the numbers had risen to 53.57% of all those who were convicted for criminal offenses. In the last seven years, more than half of those convicted in Latvia have received conditional sentences. 3 Data provided by the Ministry of the Interior's Information Center. statistika/12.php (last accessed on April 2, 2003).

15 Crime in Latvia 17 Figure 1. Conditional sentences in In 2002, Latvian courts gave 6,780 offenders conditional sentences. Of these offenders, 1,117 were juveniles. Table 2. Number of persons sentenced in Year Total number 11,280 10,877 9,797 10,428 12,772 12,952 12,862 12,689 12,679 12,615 of persons sentenced Imprisoned 4,162 3,225 2,839 2,195 3,238 2,930 2,865 3,305 2,886 3,551 % of total number sentenced Conditionally 4,192 4,490 4,029 5,334 6,801 6,915 7,408 7,168 6,938 6,780 sentenced % of total number sentenced 4 Data provided by the Ministry of Justice.

16 18 A. Judins. Conditional Sentencing as an Alternative to Imprisonment Criminal recidivism in Latvia Although criminal punishment is the means by which the state seeks to reform the criminal offender, it is no secret that punishment will not guarantee rehabilitation of the offender or prevent further offenses. The figures on recidivism indicate that measures taken to influence the behavior of criminals are not always effective. Despite being tried and convicted, there is always a certain percentage of offenders who will not be deterred from committing further criminal offenses. According to the Ministry of the Interior's Information Center, in 2000, criminal charges were brought against 1,673 persons who already had a criminal record. In 2001, the number was 1,814. Table 3. Persons with criminal records who have committed further crimes 5 Year Number of persons 1,297 1,308 1,661 1,842 1,903 1,721 1,673 1,814 Data obtained from Ministry of Interior Newsletter No. 1 on crime in Latvia and achievements of Ministry of the Interior institutions in the years indicate that a fairly large number of those charged with violating the law have been previously convicted for criminal offenses. 6 Figure 2. Percentages of offenders with criminal records 5 Data provided the Ministry of the Interior's Information Center. 6 Ministry of the Interior Newsletter No. 1 on crime in Latvia and achievements of Ministry of the Interior institutions in the years , p. 131.

17 Crime in Latvia 19 The Ministry of the Interior's Information Center also has data on the number of criminal offenses committed by persons with criminal records. This number is several times higher than the number of persons with previous convictions. The explanation is that one person is often charged with committing several offenses. Table 4. Crimes committed by persons with criminal records 7 Year Total number of crimes committed by persons 8,094 6,163 6,636 8,387 9,643 with criminal records However, according to the Ministry of Justice, in the year 2001, 3,560 convicted offenders (28.08%) had criminal records. In 2000, the number was 3,524 (27.77%). Table 5. Recidivism in Latvia in Year Total number 9,797 10,428 12,772 12,952 12,862 12,689 12,679 12,615 of persons convicted Persons No data 2,272 3,037 2,962 3,122 3,524 3,560 3,552 with a criminal available record % of total number No data convicted available A comparison of the information provided by the Ministry of the Interior and the Ministry of Justice on recidivism in the five-year period from 1997 to 2000 reveals huge discrepancies. During this period, criminal charges were brought against 8,953 persons with criminal records, but 16,205 persons who had repeatedly committed criminal offenses were sentenced. 7 Data provided by the Ministry of the Interior. (last accessed on December 11, 2002); Newsletter on crime in Latvia in Riga (2001); Newsletter No. 1 on crime in Latvia and achievements of Ministry of the Interior institutions in Riga (2003). 8 Data provided by the Ministry of Justice.

18 20 A. Judins. Conditional Sentencing as an Alternative to Imprisonment Keeping in mind that: the Ministry of Justice keeps data on persons who have been convicted, but the Ministry of the Interior, on persons whose cases have gone to trial following pretrial investigation; pre-trial investigation is often completed long before the court's judgment enters into effect, and not all persons who are charged with committing an offense are also sentenced, it is clear that there will be discrepancies between the Ministry of the Interior's figures and those of the Ministry of Justice. However, it is difficult to explain why the number of persons who have been repeatedly convicted is almost twice as high as the number of persons against whom charges have been brought. Statistics on recidivism among probationers There are no statistics in Latvia on persons who have once received conditional sentences and have later again committed criminal offenses. Pursuant to Section 63, Paragraph 3, Clause 1 of the Criminal Law, a person who has not committed any further offenses during the probation period does not have a criminal record. This means that if such person again violates the Criminal Law, the person is considered to be a first offender. In other words, the court must ignore the fact that a previous crime has been committed (although it can be taken into consideration when assessing the personality of the offender). From a criminal justice point of view, once the probation period has expired, the fact that a person has once received a conditional sentence does not affect the qualification and assessment of a new crime. For this reason, there are no statistics on previous conditional sentences of offenders, which makes it extremely difficult to analyze the efficiency of conditional sentencing. Judges and police officials say that, as far as they can tell, the rate of recidivism is fairly high. The judges who were questioned claimed that the rate of recidivism among probationers was very high, some even put it at 80 90%. Others feel that this estimate is too high. The Ministry of the Interior keeps statistics on conditionally sentenced offenders who are charged with new crimes during their probation period. Such information is compiled by the ministry's Information Center.

19 Crime in Latvia 21 Table 6. Probationers who have committed further crimes 9 Year Number of offenders ,175 1,353 The Police Inspectorate for the Execution of Court Judgements (PIECJ), on the other hand, has data of the number of probationers deleted from PIECJ records after having committed further offenses and being sent to prison. Table 7. PIECJ records on probationers who have committed further crimes 10 Year Probationers registered with PIECJ at the start 12,512 11,373 10,085 9,052 of the year 2. Registered during the year 7,457 8,956 6,842 6, Number of probationers in one year 19,969 20,329 16,927 15,631 (row 3 = row 1+ row 2) 4. Deleted from PIECJ records during the year 8,596 10,244 7,964 7, incl. probationers sentenced for new criminal offenses 5. Probationers charged with new criminal offenses 6. Number of persons deleted from PIECJ records after being sentenced for or charged with new criminal offenses 7. % of total number of persons registered It is clear that there will be a discrepancy between these figures inasmuch as the Ministry of the Interior's Information Center has information about persons who have not yet been sentenced, but PIECJ is no longer responsible for keeping track of persons whose conditional sentence has been revoked and who are serving their sentence in prison. 9 Data provided by the Ministry of the Interior's Information Center. 10 Data provided by PIECJ.

20 22 A. Judins. Conditional Sentencing as an Alternative to Imprisonment Figure 3. Recidivism among probationers

21 23 II. CONDITIONAL SENTENCING IN LATVIA IN THE 20th CENTURY Penal Law ( , ) The Penal Law that was adopted in 1933 stipulated that if an offender was sentenced to imprisonment, custodial arrest, payment of a fine or committal to a correctional institution, but there were reasonable grounds to expect that even if not ordered to serve the sentence the offender would behave faultlessly, the court could suspend the sentence. 11 Like the current law, the Penal Law demanded that the decision to conditionally suspend a sentence be taken before the judgement of the court entered into effect. In addition to the power of the Latvian President to pardon criminals, case law in the First Republic also anticipated the power of the President to discharge offenders under the conditions set out in the law. In accordance with Section 22 of the Penal Law, conditional sentences could not be applied to offenders sentenced to imprisonment if such offenders had previously received a prison sentence or a heavier sentence and if less than five years had elapsed between the end of the prison sentence and the new crime, or less than ten years between the heavier sentence and the crime. The court was required to explain in its judgement the circumstances that had prompted it to give the offender a conditional sentence and the reasons for imposing certain conditions. The Penal Law did not actually use the term "period of probation," but the lawmakers anticipated this, calling it "the period of suspended punishment." Section 23 of the Penal Law stipulated that the sentence and the subsequent divestment of rights anticipated by the law could be conditionally suspended for a period of five years for offenders sentenced to a prison term and three years for offenders with a lighter 11 Penal Law, p. 12.

22 24 A. Judins. Conditional Sentencing as an Alternative to Imprisonment sentence. During this time, the court could place the offender under special supervision and impose special conditions. The court was required to consider revoking suspension of the sentence and ordering the offender to serve the sentence if it was discovered that during the period in question the offender had: committed a further serious crime or a crime for which the offender had not yet been convicted, either before or after the conditional sentence was imposed; been previously convicted, and the period of time set out in Section 22, Clause 4 had not yet elapsed between the first offense and the offense for which the offender was given a conditionally suspended sentence; demonstrated willful misconduct, endangered personal or public safety and public order; failed to comply with the court's supervision order or to fulfil the conditions imposed by the court. While the court had not revoked its decision to suspend the sentence, the offender was not considered to have been convicted and was not subjected to the divestment of rights anticipated by the law. But the offender was considered to be absolutely discharged and the sentence extinguished only after the end of the specified period, unless it was discovered that the offender had committed another serious crime before or after receiving the conditional sentence. RSFSR 1926 Criminal Code ( ; ) The rules for conditional sentencing were set out in Chapter VI of the Criminal Code (CC). These allowed the court to conditionally impose a prison or community service sentence. The law did not specify the maximum term of punishment to which a conditional sentence could be applied. When making a judgement about imposing a conditional sentence, the court was required to set a period of probation, which could be no less than one year and no more than 10 years. The sentence did not have to be served unless the offender committed another, no less serious crime during the period of probation. Annotations to Section 53 of the RSFSR Criminal Code anticipated that confiscation of money or property, which was added to the prison or community service sentence as an additional punitive measure, was generally to be carried out regardless of whether

23 Conditional sentencing in Latvia in the 20th century 25 or not the sentence was conditional. CC Section 53 stipulated that a conditional sentence precluded divestment of rights. 12 Criminal Code of Latvia ( ) The Criminal Code (CC) of Latvia that was in force from 1961 to 1999 provided for both conditional sentences (CC Section 42) and suspended sentences (CC Section 43 1 ). An analogue system existed in all republics of the USSR. 13 The court could choose to impose a conditional sentence only in cases where the offender was sentenced to a term of imprisonment. Before imposing a conditional sentence, the court was required to: consider the circumstances in the case; assess the personality of the offender; be convinced that imprisoning the offender would serve no purpose. The court could impose a conditional sentence that would not send the offender to prison and demand that the offender: abstain from committing further crimes; justify the trust placed in the offender with exemplary behavior and honest work. When imposing a conditional sentence, the court could set a probation period of one to five years. Together with a conditional prison sentence, the court could impose additional punitive measures, with the exception of deportation, banishment and confiscation of property. After considering the circumstances in the case, the personality of the offender, and eventual applications from public organizations or colleagues at the offender's place of employment asking the court to impose a conditional sentence, the court could place the offender under the supervision and guidance of these public organizations or colleagues. In cases where no such request had been received, the court could charge a consenting team of colleagues or an individual with supervision and guidance of the offender during the period of probation. 12 RSFSR Criminal Code. Riga (1940), p Rehc eujkjdyjuj ghfdf. J,ofz xfcnm. Extybt j yfrfpfybb. Gjl htlfrwbtq. Y. Repytwjdjq, p. 210.

24 26 A. Judins. Conditional Sentencing as an Alternative to Imprisonment The Criminal Code did not anticipate the possibility of imposing additional conditions on the offender, except in cases where the crime had been committed under the influence of alcohol, narcotics or psychotropic drugs. In such cases, the court could ask the offender to agree to take part in a treatment program for alcoholism, drug or substance abuse. If the offender demonstrated by good behavior that he had reformed, after no less than half of the probation period the court could, after receiving a request from the public organization or colleagues charged with the supervision of the offender, shorten the probation period or cancel the remainder. If, during the probation period, the offender failed to fulfil the conditions set by the court without a legitimate reason; systematically committed violations of public order for which administrative sanctions or correctional measures were applied; failed to justify the trust placed in him by the public organization or the colleagues; broke his promise to demonstrate by exemplary behavior and honest work that he had reformed; abandoned his place of work in an attempt to escape correctional measures, the court could revoke the conditional sentence and order the offender to serve the original sentence. If the offender committed a further crime during the period of probation, the court was required to impose a combined sentence for multiple convictions. Suspended sentences were very similar to conditional sentences. The main difference lay only in the status of the offender following the period of probation (suspension of the sentence). In the case of conditional sentences, the end of the probation period automatically meant that the offender had fulfilled the conditions set by the court and was not required to serve the original sentence. In the case of suspended sentences, however, the court had to decide whether the sentence would be executed or the offender discharged. More precisely, the rules for conditional sentences were fairly categorical: "If there are no further offenses during the period of probation, the sentence will not be executed." A suspended sentence, on the other hand, implied: "If there are no further offenses during the specified period, the court will consider the possibility of not having the sentence executed." The Criminal Code allowed suspension of a sentence only for first offenders and only if the sentence did not exceed three years. Before suspending a sentence, the court had to consider the nature of the crime, the threat to public safety, the personality of the offender and other circumstances in the case, as well as the chances that the offender could be reformed without being isolated from society. The court could suspend the

25 Conditional sentencing in Latvia in the 20th century 27 sentence for a period of one to two years. The Criminal Code listed the categories of crimes for which the court was not allowed to suspend a sentence (murder, war crimes, rape, etc.). When suspending a sentence, the court could ask the offender to fulfil the following conditions: compensate for damages, within a specified period; find a job or attend school; not move to another location without the approval of the police; report a change of job or school to the police; report regularly to the police. The list of conditions was not particularly exhaustive, and the court was allowed to impose conditions provided for in other laws and regulations, which could have a correctional effect on the offender. With consent of the offender's place of employment or individual colleagues, the court could also place the offender under their supervision and guidance. If an offender with a suspended sentence failed to fulfil the conditions set by the court or committed violations of public order or job discipline that resulted in administrative sanctions or disciplinary measures, the court could, upon the request of the competent authority or the offender's place of employment, revoke suspension of the sentence and order the offender to serve the prison term to which he had initially been sentenced. If the offender committed a further crime while the sentence was suspended, the court added the previous sentence to the new one. Criminal Law The Latvian Criminal Code became invalid on April 1, The new Criminal Law (CL) does not provide for suspension of a sentence, but the procedure for the application of conditional sentences has not principally changed. Unlike the Criminal Code, the Criminal Law allows conditional sentences not only when the offender has been sentenced to time in prison, but also to community service or payment of a fine. The court can order the offender to fulfil the conditions listed in Section 55, Paragraph 6 of the Criminal Law. The court may set a probation period of no more than three years. The principles and the application of conditional sentences are examined in the following parts of the study.

26 28 III. PRINCIPLES AND APPLICATION OF CONDITIONAL SENTENCES Conditional sentences are an independent institution of criminal law. The principles of conditional sentences are explained in the Criminal Law, the Criminal Procedures Code, and in the instructions issued by the Ministry of the Interior. In accordance with the traditions of Latvia's criminal law, conditional sentences are not seen as an independent form of punishment, but rather as an alternative to punishment. Although a person who has received a conditional sentence is required to fulfil certain conditions, the law does not classify these as criminal sanctions, but as general obligations. The term "conditional sentence" is not quite accurate because, when making its judgement, the court finds the offender guilty with no conditions whatsoever. The word "conditional" refers to the execution of the sentence, which does not take place as long as the offender fulfils the conditions set out in the court's judgement and in regulatory enactments. In reality, a conditional sentence frees a convicted offender from having to serve the sentence under certain conditions. If these conditions are not fulfilled or violated, the sentence must be served. Legal systems in other countries use different words to describe this institution of law: suspended sentence, conditional sentence, probation. It is quite accurately described in the Belarus Criminal Code conviction with conditional non-execution of the sentence (Jce;ltybt c eckjdysv ytghbvtytybtv yfrfpfybz). 14 Conditional sentences are frequently associated only with the result an offender found guilty of committing a criminal offense is not required to serve the sentence imposed by the court. However, the law not only anticipates the consequences of a conditional sentence, it also regulates the procedure. The scheme is as follows: 14 See: Eujkjdysq rjltrc Htcge,kbrb <tkjhecm, p. 78.

27 Principles and application of conditional sentences 29 Figure 4. Steps to reaching a decision in favor of a conditional sentence Factors to be considered when sentencing conditionally Although the law requires the court to explain in its judgement why it has chosen to apply a conditional sentence, the law does not actually restrict the freedom of the court in regard to the application of conditional sentences. What is asked of the court is that its decision to impose a conditional sentence be justified and appropriate in the given circumstances. However, these requirements are not sufficiently specific to make it possible to say that a decision has been incorrect. Latvia's Criminal Law allows conditional sentencing regardless of: the type of crime;

28 30 A. Judins. Conditional Sentencing as an Alternative to Imprisonment the number of crimes; the existence of a criminal record. All the law says is that these and other circumstances must be considered, but it does not prescribe what the court must do to establish these circumstances. This means that the decision to apply or not to apply a conditional sentence is left completely to the discretion of the court and to its assessment of the situation in each individual case. United Nations Resolution No. 45/110 states that selection of a non-custodial measure shall be based on an assessment of established criteria in respect of both the nature and gravity of the offence, the personality and background of the offender, the purposes of sentencing, and the rights of the victims. 15 To establish current views on interpretation of the relevant provisions, Latvia's judges were asked to name the main factors that affect their decision on whether or not to apply a conditional sentence. Answers were received from 88 judges in Latvia. It is clear that each criminal case and each criminal has individual characteristics that affect the decision of the judge. It is no coincidence that several judges spoke of the need to assess the circumstances of a case in all aspects, with consideration for the requirements of CL Section 55, Paragraph 1. However, in general terms, judges feel that it is important to analyze: the nature of the crime; the circumstances of the case; the personality of the offender; the behavior of the offender following the criminal offense; the views of the victims on the option of a conditional sentence; socio-political factors that are not directly connected with the crime. 15 UN Resolution No. 45/110 on Standard Minimum Rules for Non-Custodial Measures (the Tokyo Rules), adopted at the 68th plenary meeting, December 14, 1990.

29 Principles and application of conditional sentences 31 Table 8. Factors judges feel should be considered before giving a conditional sentence Nature of the criminal offense Nature of the offense 16 No great damage has been done, no serious consequences The threat to public safety is comparatively small The offense has circumstantial character, there is no reason to believe that further offenses will follow The offense has resulted from negligence There are mitigating circumstances No violence was involved The episodes constituting the offense are not many in number The repeated thefts are small-scale Personality of the offender Personality of the offender 17 The person is a first offender The offender is a juvenile The offender has been characterized positively The health of the offender Familiar circumstances, number of dependents The offender has a job The offender has no criminal record The lifestyle of the offender The offender does not pose a threat to public safety The financial status of the offender The offender is able to compensate for damages Behavior of the offender following the crime The offender has compensated for, repaired the damage The offender has admitted his guilt and regrets what he has done The offender has cooperated with investigators 16 When referring to nature of the crime, respondents did not provide any details. 17 When referring to personality of the offender, respondents did not provide any details.